HomeMy WebLinkAboutAgenda Report - August 3, 1988 (43)C O U N C I L C 0 M M U N i C A T I 0 N
TO: THE CITY COUNCIL
FROM: THE CITY MANAGER'S OFFICE
COUNCIL MEETING DATE
AUGUST 3, 1988
SUBJECT: PROPERTY ACQUISITION - PROPERTY LOCATED AT 107-109 NORTI! SCHOOL STREET
PREPARED BY:
City Manager
RECOMMENDED ACTION: That the City Council consider the purchase of the
property at 109 N. Schocl Street and the lease of
the property a t 107 N. School Street and take
action as deemed appropriate.
BACKGROUND INFORMATION: Approximately one year ago the City Council
authorized the acquisition of the property at
107-109 N. School Street. At that time I advised
the owner, Mr: Mark Newfield, that the City would
purchase the property subject: to certain conditions as outlined in the
attached agreement !Exhibit A). The City sought certain assurances from both
the San Joaquin Local Health District and the Regional Water Quality Control
Board (see rmrn from Public Works Director to City Attcrney - Exhibit B) but
none were forthcoming. The City Attorney has responded to the Public Works
Director's num (Exhibit C). Prior to this exchange, I received a letter
earlier this year form Nk Newfield (Exhibit D) in which he sets forth an
interesting offer. It is recommended that this offer be incorporated into the
draft agreement(Exhibit A) to the maximum benefit to the City. To be sure,
there is some risk to prcceeding with this acquisition and 'lease, but both the
Public Works Director and I believe the risk to be minimal.
The staff will be prepared to review this matter
with the City Council at the Closed Session scheduled for this purpose earlier
cn the agenda.
Respectfully submitted,
l
Thomas A. Peterson
City Manager
TAP :b r
w
SALES AGREEMENT
THIS
AGREEMENT,
made and entered into
this 22n,� day of
September
, 1987,
by and between MARK J.
NEWFIELD, P. 0. Box Q,
Woodbridge,
California,
hereinafter referred to
as SELLER, and the CITY
OF LODI,
a municipal ccrporation of the
State of California,
hereinafter
referred to
as BUYER.
WITNESSETH:
1. Seller, in consideration of the agreements of Buyer, hereby sells
and agrees to convey to Buyer by a warranty deed, accompanied '^y an
abstract, evidencing good title in Seller at the date thereof, upop the
prompt and full performance by Buyer of this agreement, ail that land
located in San Joaquin County, State of California, more particularly
described as:
Parcel One:
The South 70 Feet of Lot Five (5) and the South 70 Feet of
the Easterly 10 Feet of Lot Six (6) in Block Eleven (11),
as shown upon Map entitled City of Lodi (formerly
Mokelumne) filed for Record August 25, 1869 in Vol. 2 of
Original Maps, Page 84, San Joaquin County Records.
Parcel Two:
August 25, 1869 in Vol. 2 of Original Maps, Page 84, San
Joaquin County Records.
More commonly known as 107 and 109 North School Street,
Lodi , Cal ifornia 95240. The Assessor's Parcel Numbers are
043-014-08, 09.
2. Buyer, in consideration of the premises hereby agrees to pay
Seller at Lodi, California, as and for the purchase price of said
premises, the sum of Two Hundred Twenty Thousand Dollars ($220,000).
3. As a condition precedent to Buyer buying said premises, the
Seller sha i I :
A. Remove all gasoline tanks on the premises at Seller's
expense.
B. Arty and all holes on premises as a result of removing
gasoline tanks from the premises shall be filled with
material suitable for building over, at Seller's expense.
C. Obtain from the `:?n Joaquin Local Health District at
Seller's expense, an environmental clearance as to any
ground contamination by any hazardous and/or toxic waste
and/or any hazardous and/or toxic substance release.
D. Permit Buyer to obtain from an environmental testing firm of
Buyer's choosing, and at Seller's cost, an affidavit and/or
certification that the ground water located underneath the
premises is in no way contaminated by any hazardous and/or
2-
toxic waste and/or any hazardous and/or toxic substance
re?ease.
E. Any and all holes on premises as a result of removing any
hazardous and/or toxic waste and/or any nazardous and/or
toxic substance release from the premises shall be filled
with material suitable for building over, at Seller's
expense.
F. Seller does agree by this agreement, to hold Buyer harmless
from any work and/or other improvement or liability which
might occur now or in the future from any hazardous and/or
toxic waste and/or any hazardous and/or toxic substance
release, on or underneath said premises.
4.
If the aforementioned
condition precedents
are not completed to
the
satisfaction of Buyer,
and are not completed
by January 15, 1988,
then
Buyer shall have no
liability to purchase
said premises from
Seller.
5. Title is to be free of liens, encumbrances, easements,
restrictions, rights and conditions of record or known to Seller.
Seller shall furnish to Buyer at i Buyer and I Seller expense, a
standard California Land Title Association policy issued by Founders
Title Company, showing title vested in Buyer subject only to liens,
encumbrances, easements, restrictions, rights and conditions of record
as set forth above. If Seller fails to deliver titles as herein
-3-
le-
iUNh�cvi4 •v..ii.8,..;.in...�-M '„ N^.V-.nihR +isect vrvN �'Wr .. ✓4 .t0 f �.n m.4 %+.4.+..Srr<..:.v 8:i }n`�'v�•5i. j�.%i!. l ..�'A{K..U�...�5..r3cJ�^.v�y . '3:.Kk
,t..'if
C C
provided, Buyer at his option may terminate this agreement and any
deposit shall thereupon be returned to Buyer.
6. The amount of any bond or assessment which i s a lien shall be
assumed by Buyer. Seller shall pay cost of documentary stamps on deed.
7. Escrow instructions signed by Buyer and Seller shall be delivered
to the escrow holder within three days from the Seller's acceptance
hereof and shall provide for closing when possible from the Seller's
acceptance hereof, subject to written extensions signed by Buyer and
Seller.
I 8. Upon the agreement to purchase said premises by the signature
hereon of Buyer, Seller shall open a6 escrow at the Founders Title
Company, 330 South Fairmont Avenue, Lodi, California, 5405 North
Pershing Avenue, Stockton, California.
`.t
is
{ g, This agreement may be recorded.
12. In the event either party hereto breaches the terms, conditions
and covenants of this agreement, then the party prevailing in any suit
to enforce this agreement or to restrain the breach thereof, shall in
addition to any other relief or damages awarded, be entitled to a
reasonable attorney's fee and all costs of suit to be set and
determined by any court of competent jurisdiction and added to any
judgment obtained.
CITYOF LODI, a municipal corporationBUYER ELLER
THO.tom.
Ah S A. PETERSON_
City Manager
ATTEST:
ALICE M. REIMCHE/
City Clerk
Approved As To Form:
' 1
RONALD M. STEIN
.C -i t u A. tamcy
M;_—. AINDUIM, City of Lodi , Public Works Department
City Attorney
Publ is Works Director
July 19, 1988
Proposed Purchase by City of Lodi of 109 N. School Street
Th- P:egional Water Quality Control Board and the San Joaquin Local Health
b;_ -_rict were mailed the attached letter dated June 7, 1988. After two
hdd passed, I called the Local Health District and found that they
h_• recently discussed the letter with Nk Boggs and determined that they
r✓ol d not respond until the Regional Board had responded to us.
The t.ocal Health District did indicate that Mr. Boggs had a problem with
si-T-ing the letter as it was and it was their feeling that he would be in
Contact with me. Since that time I have had a total of four discussions
W i_ Mr. Boggs' office. However, not with Nk Boggs personally. On two
o=- �sions, I formally requested a written status response in order that I
c-Ild inforrn the City Manager and the property owner of the project
s4:us. I was told that vie would be receiving something from their legal
of ice and that if I wanted a response I should contact them. I clearly
it known that 1 felt that it was Nk Boggs' responsibility to provide
ire Ath a response and not for nye to have to call other offices. On July
5, 1988, our office received the attached document dated May 8, 1987.
Thi,- document was received with no cover letter. The fast tali to Gordon
Beggs was on Friday, July 15; he was not in and he was to return my call.
W received a message from his office indicating the letter we were
ex .cting would be in the mail today and that they would forward a fax
copy t o us. Attached i s a copy of the undated letter that was faxed. '*
Th,:, question is: What is the City's liability for clean-up if vie buy a
par. -el knowing that there may be groundwater contamination under it? Can
yolk e aluat the attached d to in order t e ec m endatO to the
, �ouncii on the ppurchase of proposed0 ci00 reet.
Do' `ars have been budgeted for this purchase. At this point, it is clear
we are not going to get a clear-cut answer on our responsibilities
fro, -3 the Regional Board. 1 would appreciate any help that you could give
us on this matter in order that vie can inform the property owner of our
7r ntions to purchase or not purchase the property.
(aack L. Ronsko
e ;-i7i
c Works Director
Tia
Attachments
cc: City Manager
Mark Newfield
.CITY COUNCIL
LAMES W. PINKERTON. jr.Ntayor
10HN R. (Randy) 5N1DER
Mayor Pro Tempore
DAVID M. HINCHMAN
EVELYN M.OLSON
FRED Ni REI D
i
CITY OF LODI
CITY HALL. 221 NEST PINE STREET
CALL ROX 3006
LODI, CALIFORNIA 95241-1910
(209) 334-5634
TELECOPIER .12091333.6795
June 7, 1988
Regional Water Quality Control Board
Attenti on: Gordon L. Boggs
3443 Routier Road
Sacramento, CA 95827-3098
SUBJECT: Proposed Purchase of 109 N. Schoo? Street by City of Lodi
THOMAS A PETERSON
City Manager
ALICE M, REIMCHE
City Clerk
BOB McNATT
City Attorney
The City of Lodi was interested in purchasing the parcels located at 107
and 109 N. School Street (see attached sketch). The Assessor Parcel
Numbers of these properties are 043-024-09 and 043-024-08.
As you are aware, there is known soil contamination at 107 N. School
Street. This contamination was found at the time of the removal of five
waste oil and petroleum storage tanks. The City of Lodi is proposing to
buy 109 N. School Street (AP -043-024-08) now, and 107 N. School Street
(AP 043-024-09) when the site contamination is removed.
W want to confirm our responsibilities as owner of 109 N. School Street
with respect to the contamination which is present on the adjoining parcel
to the south, 107 N. School Street. At the Apri 1 1, 1988 meeting that w
had at the Regional Board office with Gordon, Boggs and Laurie Cotulla
present, 114 Boggs indicated that any soil or groundwater contamination
originating from 107 N. School Street would be the responsibility of the
owner of 107 N. School Street. Mr. Boggs pointed out that the City should
ensure that there was no contamination originating from the parcel the
City was going to buy,
Before the City buys the 109 ti. School Street parcel , we want to confirm
that w interpreted the statements of Xt Boggs correctly and that this is
the position of your agency. If this i s your agency's position, please
sign one copy of this letter and return it to nr in the enclosed
self-addressed envelope.
If this is not your position, w would appreciate an early response to
what the actual responsibilities of the new owner of 109 N. School Street
would be with espect to underground contamination on the adjacent parcel.
r11 1 ,
-6Jack'_�L.
Ronsko APPROVED BY:
Works Director
JLR/ma
cc: City Manager
San Joaquin Local Health District
(Name)
(Gate)
.�.,'#`�t�E:.xw.unw+wwr,�c.�4�.�emrt�rt7,�dtn+r+.�oUsvuttia4aa,Y�N�4.v�..,.w:ataa;./m.*e.++Ne[a�2r.�n.e •r.�mrmbr.M'N"+t'' •
-
�
• CHURCH, STREET t
fCj:O cp
2
w t_ • e• f s C' N r� ra
I----- w
ti ►
i =
rt n .�JlNl I _ �
u
�w SCHOOL, u, STREET
"t w m
O r v 4 : Q va �t O �
74
PC
QN
GKI
8-1
a SACRAMENTO STREET
6 S s 3 2 1 6 5 -4 a 3 2 Q•i ^��
I. lily. i• i a.r ti a zo
Fro•A•u i-.. I W
• a• •< I � c ae •c O 3
• •disc
slt:.. if LODI Rfp10';r LOD1
I m 0 `�
S:am of Cai,tornQ
Memorandum
s
•
nlliam R. Attwater
Chief Iounsei
From : STATE WATER RESOURCES CONTROL BOARD
L
L)L.0 b 1088
CiF Y Cr L 0 DI
1C?' ' "FURCK: �':02K5 CE7.1F.TvCNF
Subject: INCLUSION OF LANDOWNERS IN WASTE DISCHARGE REQUIREMENTS AND ENFORO MENT ORDERS
Attached is a num explaining marry of the issues addressed in State Board
oroers regarding the inclusion of landowners in waste discharge requirements
and enforcement orders. Also included in the main is a brief explanation of
the legal basis for decisions. By no means are all of the possible situations
which may confront you adaressed by State Board orders or the Menlo. However,
to the extent that the State Board has already dealt with some of these
questions, it is important that there be substantial consistency by the
Regional Boards.
The basic principles involved in naming landowners in orders can be surmari zed
i n a few key points:
1_ Anyone who owns land on which a discharge is occurring is a discharger
under Porter -Cologne.
2. Any discharger can be named in waste discharge reoui rements and made
I generally responsible for wnat goes on with regard to the property.
3. Enforcement orders can be issued to a landouner only if the cleanup
involves something about which the lanaowner knew or should have known and
over which he or sne had some measure of control-
4,
ontrol_4. If the landowner is another public entity wnich has the legal duty to
protect the environment, it is proper to name the agency in waste discharge
requirements out it should only be made the subject of enforcement actions -
after it is clear that the actual discharger will not comply and that the
public entity is not moving quiCrly to rectify the situation.
5. Findings of each element of a landowner's responsibility must oe supported
by substantial evidence.
/ h\ r
'rational Board :xec,give officers
I
n addition, it msy be aavisabie to maze enforcement orders morn realistic by
assigning auLies to a landowner wnicn recognize tiiar trie landowner, in many
cases, must wai tc see wnetner the Lenant noes me required task before
assuming the responsibility for doing it.
Attachment
i4-
?Ka
Regional Board Executive Officers _Z_ N'M 0 8 12$7
In addition, it may be aovi sable to crake enforcement orders more realistic by
assigning duties to a landowner which recognize that vie landowner, i n many
cases, must wait to see wherner the tenant does the required task before
assuming the responsibility for doing it.
A ttachment
cc: Fresno, Redding, and
Victorville Offices
Dale Claypoole
Program Control Unit
bcc: C. David Sdillis
Deputy Director
Toxic Substances Control
Division
Department of Health Services
7 7.14/744 P Street
Sacramento, CA 95814
E
R. H. Connett
Assistant Attorney General
! Office of Attorney General
1515 K Street, Suite 511
i Sacramento, CA 95514
s Roderick E. Walston '
Deputy Attorney General
i Office of Attorney General
']C!l Mr,T 1'l . 04-,., ,-.4-
State of Cahtornia
M, em or: n d u m
`o State board Me:,-Ders
Ci
iMliam R. Attwater
Chief Counsel
From : STATE WATER RESOURCES CONTROL BOARD
Suoiect:
RESPONSIBILITY FOP, CLEANUP
Dore
.,v ,2yv
j
OU_STION
What is the proper basis for holding someone responsible for the cleanup of a
site which threatens to pollute or is polluting a water source?
AINSWER
In general, the law imposes the duty to protect the public from a condition of
pollution or nuisance on a site on those wAw are aware or should be aware of
the problem and who are in a position to do something about it. There are,
however, many subtleties in the business or assessing responsibility and such
determinations are highly dependent on the facts of each case.
f;
DISCUSSION
The Portor-Cologne Water Quality Act paints with a broad brush when it comes to
assessing responsibility for the cleanup of polluted sites. Section 23304 of:
the water Code Drovides tnat any person "who has discharged or discharges'
waste' or any person "who nas caused or permitted, causes or per -nits, or `
tnreatens to cause orpermit" the discnarge of waste into water or wnere it
might get into water may De oraered to clean it. up If the Regional Board.
The word "discnarge" is not defined in the 'water Code nor does the case law
offer any precise definition. The State and Regional boards nave consistently -
_ taken a broad view of the word's meaning and have applied it to indirect as
well as oirect releases of pollution causing substances. Thus, allowing an
existing source of contamination to spread from the soil to nearby ground water
is as much a discnarge as pouring a barrel of the stuff into a sump. ( See, for
example, ioecon Corporation fir•aer No. WQ 86-2 and Stuart Petroleum Order
No. WQ 86-15.)
- - --
— - - - --- -
.. - A 11.yet
( +i+�A' � +..if.. •�',:;L. ` 'tee' v.
M.
E.. F .
.-. ,.w..... .t ............ ... ..,..... .
...........
C
.� � �:'..:.. .:� ,� - _.s •^ 'y:�. `
x
.. . . . e,•. -.......
fir`-' .as.iAv�..:.+ .. u.R.... . .w.a ., _
• iF ��`)
t.
Sta_e boa^c Memoe^s
2.
1a FY0 � !`F
v
I
n an opinion of the Attorney General issued In 1955, the ten„ "dlscnarae" is
C!—; s _ssed.
"The term 'dlscha`--e' is not cefined In the act but is
apparently used in two senses in Water Coce Section 13054: (1)
as a verb meaninc, _o emit ; to give outlet to; to pour forth',
and (2) as a noun meaning eitner, 'A flowing or issuing cut,' or
'that which is e.i:iteed' (Weasler's New International C-c_lovary
742 [2d ed. unab.
The opinion toes on to apply that analysis to an abandoned mine whicn continued
to discharge tainted water after it was closed gown.
"It is immaterial that the mining operations may have terminated
before either purchased h;s present interest because the
discharge for wnicn they are accountable is the existing and
continuing drainage from their holdings, not the now
aiscontinued mining." (26 Ops.Atty.Gen. 88.)
in light of the broad Porter -Cologne coverage and the general use of the word
"discnarge," the State Board has adopted a series of orders dealing with
several permutations of the landlord -tenant and owner-former/owner dicoto mies.
of the Stare Board orders nas been based, at least in part, on the line of
California cases which has assigned increasing responsibility to landowners for
most bad things that happen on tneir property. Among rue leading cases are
c-1 1y.Laudenslayer (44' Cal.App.3d 504, 118 Cal.Rptr. 741), a 1975 case
involving the iandiorc s knowledge of a vicious dog owned by his tenants,
Coofer v. Golden (1955, 135 Cal -App -2d 623, 28a P.2d 90); assessing the
Fain Rty oT a former owner for injuries which occur afrer the sale, and ewell
v. Loverde (1969), 70 Cal .2d 666, 75 Cal.k.Dtr. 889), concerning the ability OT
a lancowner to pass along certain responsibiiitie; to a tenant through lease
provisions. These and otner cases all point in one direction.: A iandowner may
oe held accountable for what transpires on the prcperty ne or she owns but the
courts will look to how much the landlord knew about what was happening on the
property and now much control the landowner had over the dangerous condition or
activity. No brigh_-line standards have peen drawn by the courts. Each case
differs slightly from the others and the courts take pains to look to those
!
distinctions.
For example, in the Uccel to case, the plaintiff won the legal point and
achieved reversal of a non -suit. A later case, Lundy v. •CaliT-ornia-Pealty
(1985, 170 Cal.App.3d 813, 26 Cai.kptr. 575) heir, that Uc_cei'tc apptiea on the
law nut found that the facts .ailed to snow that the lanalera ;chew about the
ranger posed Dy the aog on the premises.
..tate bo -,-c �'7af^�1n•-S ��i n ,,.�
Iallforn'.a courts nave not, as Yet, dear with the sltuazicr wnere the
landowner resaonsiDility is jue_ec in lient of me exercise of the state's
police power tun:tion. The cases nave uniformly consideree the competing
rignts of two or more private parries. The public policy questions considered
Dy the courLs nave invoivee how fault and compensation are aDDortioned among a
handful of individuals. A few federal cases nave beeun -cc look at the cuestion
of now the generalizea rionts cf the puDlic and the taxpayers can be reconciled
with the occasional unfairness visited on individual landowners.
1r. U.S. v. 1Firabile (15 ELK 20994, DC EPN 1985) a federal court relieved a
secured creditor rrem liability for the costs of cleaning up polluted land it
had recently acquired tnrouah foreclosure. But in U.S. v. 14aryland Bnk awd-
Trust Company (632 ?.Sup—.573, DC Md 1986) another court heid a Dank
responsiDle for EPA's costs of a site cleanup even though the bank only owned
the property throueh foreclosure. The only real different? between the two
cases is that the fIaryland bank had ownei the property about four times as long
as the Pennsylvania bank. In one case the court sought to protect the
interests of lenders who may have all the equity in a piece of property wiped
out by a cleanup bill. The otner court wanted to reimburse EPA for the cost of
cleanup.
Both cases are statutory interpretation exercises. The recent Superfund
amendments, known as SARA (Superfund hnendments and Reauthorization Hct of
1986), attempt to deal with the problem created by the language of
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA) which led to the conflicting judicial interpretations laid out above.
Among other things, the amendments include what is known as the "innocent
landowner defense." A purchaser of land will not be held accountable for the
costs of cleanup if he or she did not know and had no reason to know to at a
hazardous substance was deposited there. A public entity has no responsibility
if it takes the property by escheat or condemnation. An owner is not liable if
the property passes by inheritance or bequest. The exceptions have a few
exceptions but trig most important aspect of the new rules is that a bank or
other lender is put on notice that inquiry into the past and proposed uses of
the property is important before a mortgage i-- granted.
To date .tee State Board hes not been asked to deal with the rather sticky
"mortgagor as landowner" issue. SLate Hoard orders have dealt, however, with a
vide variety of factual settings. Beginning in 1984 with the Logsdon Drdar
(No. uQ 84-6), the State Board dealt with the naming of lz,idowners in r:aanup
and abatement orders. There the landlords claimed not to Know what was
happening on the property they leased to a wood preserving company. Tney also
s claimed to be unable to do anything to prevenr it. The ;acts supported the
Regional "Board on both issues, me Detitioners were shoran to be well aware_ of
the nature of the wood preserving business based or, Earlier invoivement at'
another site. Furthermore, ine lease cave the landloras thr right and ability
to en: .• the property to prevent the very sort of thing t n a t was going on
1 . ,___
,tdtE i OarC NemSers -. It�ni 1. . ;Z:Ji
urcer No. na E6-7 (Exxon) found the State Boarc overruling the kegional Board
on the inclusion of an oil company in a leaxin-j tank cleanup. Exxon was only
involved in the distribution, of fuel to the service station and was not
responsible for the inspection or maintenance of the tanks into which the fuel
was poured. The only evidence connectinc Exxon with the ownership of the site
was some personal property tax records w±•:CR, on closer inspection, showed
Exxon's noleinas on the site to consist of some furniture, some too -is, a credit
card imprinter, and two used pumps.
Five State Board orders were issued on the eer-ral topic of landowner
responsibility during 1966. The first, Order t;o. WQ 86-2 (Zoecon) considered
the p?ioht of a com.pan_ wnicn had recently acouired a property from prior
owners who had discharged a variety of hazardous chemicals into toe ground.
The Regional Board looked to the current owner to clean up the site even though
others were likely to be far more culpable. The State Board upneld the
Regional Board action. Because there was an actual movement of waste from soil
to water on the site, a continuing discharge existed for which the current
owner could be held responsible.
State Board Order No. WQ 86-11 (Southern California Edison) approved the
inclusion of a landowner in waste discharoe requirements issued to the operator
of two soiar power plants. No cleanup was invoived and the order recognized
the importance of including the ultimately responsible party in the
requirements issued to the less permanent user of the site. The order approved
the kegional Board decision to distinguish between the day-to-day
responsibilities of the site user and the underiying responsibility of the
landowner.
in Order No. WQ 85-15 (Stuart Petroleum) the issue was wnether an absentee/sub-
lessor couid be held to account for a site cleanup along with the on-site
operator (sublessee) and the property owner. ine conclusion was tnat, given
sufficient proof that the sublessor knew of the activities on the site and that
it had the power unser the lease agreements to regulate the activity, the
inclusion in the order was proper.
The next orasr adopted by the State Board, kc. i4Q 86-13 (Stinnes-Western),
:-onsidered a petition from a former landowner wno felt that there was not
enough proof tnat the discnarge way, causeq during its tire in possession to
include it in a cleanup oreer. The board applied the standard it set up in the
Exxon oroer ana found that tnere was substantial evidence in the record to
support the Kegional Hoard's conclusion.
The last of the 1986 orders, leo. WQ 86-18 (Va?lco Park), sustained a cleanup
oroer issued Dy the Regional Board to both trre current and former tenants of a
site and to the landowner. Tne latter appealed contending tnat it was unable
to regulate the on -sire activities of the tenants. The State board found that
Sate bda-h emaL'S nn' ..
the re:.ore suoported the kecional board decision anc that the lancowner nae
sufficient recourse under the iease agreement to regulate the conduct of the
tenants. Furthermore, the State Board recognized that the kecional board
intended to look -co the landowner for cleanup only if the two principle parties
oefaulted on their responsiDilities.
Tne most recent order adopted Dy the State Board, No. WQ 87-5 (U.S. Forest
Service), aealt for the first time with the naming of another regulatory
aaeacy/lancowner in waste discharge requirements. The Board took special care
to tell the Regional Board tnat any enforcement action should be taken first
against the lessee and only as a last resort against the Forest Service.
However, the inclusion of the federal agency in the waste discharge
requirements was found to be entirely proper.
can be seen from the orders issued by the Board, a distinctior: has been
made bet-een the issuance of waste discharge requirements and cleanup and
abatement orders. The former may properly be issued to landowners without
reaard to their actual involvement in the discharge; the latter are subject to
the restrictions discussed above. Tvw Board orders ( Southern California Edison
and U.S. Forest Service) involve waste discharge requirements and each
specifically says that the Regional Board should be careful in assessing
responsibilit, for sire cleanup. But each order makes it ciear that waste
discharge requirements may be issued based on the ownership of the land and
need not consider the otner factors.
CONCLUSION
There is near total consistency between the way that the State Board nas dealt
with the varfous ownership responsibility questions, the case law within
California, and the current federal approach to apportioning liability in such
things as Superfund cleanups. The basic principle i s legally supportable and
makes gooa sense as a matter of public policy. So long as the Owner of a piece
of land is aware of what is happening or! the land (or should be expected to be
aware) and has the power to regulate the conduct of which he or she i s aware,
tn- lancowner, not trie public treasury, shculo boar the costs of cleaning up
pollution and nuisances tnat occur on the land.
��. James L. Easton
Yj=F •
, C:`.L"CRVtA GEORGE DEUKMEJIAN. Governor
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD— •-;V1
CE,'J1TRAL VALLEY REGION +
3443 ROURECR ROAD is
SACPUMENTO. CA 45827-3098
b� FAY, e
1C1 dao
:'O: LANDOWNER
SUBJ':_--T: RESPONFTBILITY FOR CLEA"P AND ABATEMENT
In addressing the responsibility of a landowner for a waste
discharge into waters of the state that creates a condition of
pollution or nuisance, the Regional Board is guided by the
following general principles:
1. Anyone who owns land on which a discharge is occurring may be
cansidered a discharger under the Porter -Cologne Water Quality
Control Act.
2. Any discharger can be named in waste discharge requirements
and made generally responsible for discharges of waste which nay
affect water quality.
3. Enforcement orders, such as an Order to Clean Up and Abate,
can be issued to a landowner. Such orders will be issued when the
landowner knew or should have known of the discharge, and had
soxe measure of control over the discharge_ If the Landowner is a
separate entity from the operator of the facility, primary
res. -msibilitg for cleanup may be placed upon the operator. 1
These general principles may not apply to all possible
situations, and the Board will examine each case on its own
merits.
Landowners seeking to determine their responsibilities for
cleanup and abatement of a condition of pollution or nuisance are
advised to obtain the assistance of legal counsel.
WILLIAM H. CROOKS
Executive officer
el,�
... .. t,,. .. .. .. ,... .... .
MEMORANDUM
To: Jack L. Ronsko, Public Works Director
From: Bob McNatt, City Attsrney
Date: July 25, 1988
Re: Proposed Purchase by City of Property at 109 N. School Street
The petroleum contamination OR the property at 107 N. School Street
will apparently continue to be a problem for the City's proposed
purchase of the parcel next door at 109 N. School Street. After some
legal research and a phone call to Gordon Boggs of the Regional Water
Quality Control Board, it appears that there is at least a possibility
that if the City should purchase the property at 109 N. School Street,
and it is later found to be contaminated, the City could be required to
clean up the property should the present owner fail or refuse to do so.
I was successful in contacting Me Boggs by telephone on July 22,
1988. I+ sounded exasperated that NAe were still trying to get him to
clarify some of his previous statements and to provide further guidance
or suggestions on how the City should proceed. Boggs stated that he
knew the site at 107 N. School Street was contaminated, but had no
information indicating that the contamination had spread to 109 N.
School Street. I+ also stated that he felt it was absolutely Nk
Newfield's responsibility for the cleanup of both sites should it be
necessary although he also stated that if NI Newfield did not do so,
the Regional Water Quality Control Board would look to the City for
cleanup. I+ also expressed puzzlement as to why the City would want to
purchase a site that had such a (pod possibility of being contaminated.
I have done some cursory research through the Federal statutes
(Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) 42 U. S. C. § 9601 et seq.) and the pertinent State
provisions (the Porter -Cologne Act, Cal. Water Code § 13000 et
seq.) . Although the Federal statute does not appear to be an imminent
problem, the State legislation may be applicable and could cause the
City some problems if it purchases the site at 109 N, School and then
discovers that the parcel is contaminated.
Mr. Boggs indicated that the City of Sacramento was in a similar
situation, and had acquired a parcel which was found to be contaminated
with petroleum products. Since no previous owner could be located, the
Regional Water Quality Control Board imposed the responsibility upon
the City of Sacramento to clean up the site, according to Mr. Boggs.
Jack L. Ronsko, Public Works Director
Page 2
I spoke with Tamara Harmon, Sacramento City Attorney's office, who is
handling a similar problem. She has concluded that the City cannot
avoid the responsibility for cleaning up the contaminated site, and
believes Lodi is in the same position. She agrees with me that
California law mandating clean-up makes no exception for public
agencies.
Addressing the specific query i n your memo of July 19, 1988, I believe
the answer is that the City i s liable for cleanup of the parcel if IAC
buy it knowing that there nV-43o groundwater contamination, and if the
seller fails or refuses to clean it up. There may be considerations of
which I am unaware, but my preliminary recommendation to the City
Council on this proposed purchase would be to receive from the seller
some additional assurance, either in the form of contract or surety,
that if it becomes necessary to decontaminate the site, the seller
would be responsible. However, economic factors may make this an
impractical approach.
_aL A447f=Ll. �,
Bob Kc att
City Attorney
BM:vc
cc: Honorable Mayor and Council
C it y Manager
PWSCHOOL.ST/TXTA.OIV
March 3, 1988
Mr. Tom Peterson
City Manager's Off ice
Lodi, CA 55240
Dear Tom
i
Lau
REAL ESTATE, INC.
I propose to sell and lease my two prope~ties; 105 N. School
Street and 107 N. School Street, to the City of Lodi as follows:
1). The City of Lodi to purchase 109 N. School Street for $110,000.00
(Half the appraised value).
2). The City of Lodi to LEASE 107 N. School Street for 100 years at
$1.00 per year "NET NET NET," or until the Seller can satisfy the
County Health Department that the property poses no health hazard to
the environment.
3). At such time that Seller satisfies the Health Department, ti City
will then purchase 109 N. School Street for $110,000.00 within 3t1 days
of satisfaction.
4). The City of Lodi will have the option to purchase the leased
property at any time during the lease period for $110,000.00.
I think you'll agree that this propopsal is a "Win Win" situation
for both the Buyer and Seller. The City gets what it wants; namely,
both properties for half price, and Buyer satisfies his obligation to
the bank, whose note continues to drag interest.
Sincerel- ,
°Mark Newfield
MN:pjv
03
REALTOR` 330 S. Fairmont, Suite 1, (209) 3342141 / Stockton (209) 948.6171
P. 0. Box 7-97 / _ Lodi, Collfornio 95241 Homes / {ranches / Commercial / Industrial and Investment Properties
MEMORANDUM
To: Jack L. Konsko, Public 'forks Direc;
From: Bob McNatt, City Attorney
Date: July 25, 1988
Re: Proposed Purchase by City of Property at 109 N. School Street
The petroleum contamination on the property at 107 N. School Street
will apparently continue to be a problem for the City's proposed
purchase of the pl-rcel next door at 109 N. School Street. After some
legal research and a phone call to Gordon Boggs of the Regional Water
Quality Control Board, it appears that there i s at least a possibility
that if the City should purchase the property at 109 N. School Street,
and it is later found to be contaminated, the City could be required to
clean up the property should the present owner fail or refuse to do so.
I was successful in contacting Nk Boggs by telephone on July 22,
1988. Fb sounded exasperated that NAe were still trying to get him to
clarify some of his previous statements and to provide further guidance
or suggestions on how the City should proceed. Boggs stated that he
knew the site at 107 N. School Street was Contaminated, but had no
information indicating that the contamination had spread to 109 N.
School Street. He also stated that he felt it was absolutely Me
Newfield's responsibility for the cleanup of both sites should it be
necessary although he also stated that if Me Newfield did not do so,
the Regional Water Quality Control Board would look to the City for
cleanup. Fb also expressed puzzlement as to why the City would want to
purchase a site that had such a good possibility of being contaminated.
I have done some cursory research through the Federal statutes
(Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) 42 U. S. C. § 9601 et seq.) and the pertinent State
provisions (the Porter -Cologne Act, Cal. Water Code § 13000 et
seq.). Although the Federal statute does not appear to be an imminent
problem, the State legislation may be applicable and could cause the
City some problems if it purchases the site at 109 N. School and then
discovers that the parcel is contaminated.
114 Boggs indicated that the City of Sacramento was in a similar
situation, and had acquired a parcel which was found to be contaminated
with petroleum products. Since no previous owner could be located, the
Regional Water Quality Control Board imposed the responsibility upon
the City of Sacramento to clean up the site, according to Xt Boggs.
X
v^,u"t,i'"�rt. >>':?F,, n a.. h•'`. S J✓,, ., �` ttY •..e`t. .:. �' ..,. ,;.,t ..,.,V,"°S$°'�s.l'.m ':'Y .k .F'.:ta .. •. ,.:F. �.
Jack L. Ronsko, Public Wc& Director
Page 2
I spoke with Tamara Harmon, Sacramento City Attorney's office, who is
handling a similar problem. She has concluded that the City cannot
avoid the responsibility for cleaning up the contaminated site, and
believes Lodi is in the same position. _ She agrees with me that
California law mandating clean-up makes no exception for public
agencies.
Addressing the specific query in your nam of July 19, 1988, I believe
the answer i s that the City is liable for cleanup of the parcel if vie
buy it knowing that there may be groundwater contamination, and if the
seller fails or refuses to clean it up. There may be considerations of
which I am unaware, but my preliminary recommendation to the City
Council on this proposed purchase would be to receive from the seller
some additional assurance, either in the form of contract or surety,
that if it becomes necessary to decontaminate the site, the seller
would be responsible. However, economic factcrs may make this an
impractical approach.
Bob McNatt
City Attorney
BM: vc
cc: Honorable Mayor and Council
City Manager
PWSCHOOL.ST/TXTA.01V